Citation Nr: 1002128 Decision Date: 01/13/10 Archive Date: 01/22/10 DOCKET NO. 07-38 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, denying service connection for posttraumatic stress disorder, bilateral hearing loss, tinnitus, hypertension, nephritis, and cardiovascular disease with arteriosclerosis and endocarditis. In July 2007, the Veteran submitted a notice of disagreement (NOD) for all of the issues. He subsequently perfected his appeal for only hypertension, bilateral hearing loss, and tinnitus in December 2007. His case is currently under the jurisdiction of the RO in Louisville, Kentucky. In April 2008, the Veteran presented sworn testimony during a video conference hearing in Louisville, Kentucky, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The issue of tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that hypertension is the result of a disease or injury in active duty service. 2. The preponderance of the evidence is against a finding that bilateral hearing loss is the result of a disease or injury in active duty service. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by active military service and may not be presumed to be. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). 2. Bilateral hearing loss was not incurred in or aggravated by active military service and sensorineural hearing loss may not be presumed to be. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Prior to the initial adjudication of the Veteran's claim, a letter dated in January 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio at 187. Additionally, the January 2007 letter informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. Private treatment records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when there is (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. With regard to the Veteran's claim of entitlement to service connection for bilateral hearing loss, the record indicates that he underwent a VA examination in August 2007 and the results from that examination have been included in the claims file for review. The examination involved a review of the claims file, a thorough examination of the Veteran, and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim for bilateral hearing loss. With regard to the Veteran's claim of entitlement to service connection for hypertension, the Board concludes an examination is not needed because the only evidence indicating the Veteran "suffered an event, injury or disease in service" is his own lay statements. Such evidence is insufficient to trigger VA's duty to provide an examination. The Court has held, in circumstances similar to this, where the supporting evidence of record consists only of a lay statement, that VA is not obligated, pursuant to 38 U.S.C.A. § 5103A(d), to provide a veteran with a medical nexus opinion. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the veteran's claim because there was no evidence, other than his own lay assertion, that " 'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"). See also Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (holding that 38 C.F.R. § 3.159(c)(4)(i) is not in conflict with 38 U.S.C.A. § 5103A(d) and evidence of record "establishing that the veteran suffered an event, injury, or disease in service," is required to trigger VA's duties pursuant to § 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary's obligations under § 5103A to provide a veteran with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates "some causal connection between his disability and his military service"). There is no reasonable possibility that a medical opinion would aid in substantiating the Veteran's claim because it could not provide evidence of a past event. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C.A. § 1131 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2009). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2009). In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and certain diseases, such as hypertension and sensorineural hearing loss, becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2009). A. Hypertension The Veteran claims that he has hypertension as a result of his active military service. Specifically, he contends that the stress he experienced while in combat has resulted in hypertension. He, therefore, believes that service connection is warranted. The Board notes that hypertension means persistently high arterial blood pressure, and by some authorities the threshold for high blood pressure is a reading of 140/90. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 889 (30th ed. 2003). For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. This must be confirmed by readings taken two or more times on at least three different days. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2009). The medical evidence of record reflects that the Veteran has been treated for and diagnosed with essential hypertension for several years. As such, the first element of Hickson is met. However, a current disability is not sufficient to warrant service connection. There must also be evidence of an in- service disease or injury and a medical nexus between the current disability and the in-service disease or injury. See Hickson, supra. Review of the Veteran's service treatment records does not reveal that he was treated for or diagnosed with hypertension during his time in service. Specifically, upon entry into active duty service, all systems were considered to be normal and the Veteran's blood pressure was 136/70. Upon separation from service, again all systems were noted to be normal and the Veteran's blood pressure was 110/60. A pre-discharge examination report showed blood pressures of 140/86 sitting, 150/90 recumbent, and 148/90 standing. However, these blood pressure readings were not confirmed by readings taken on at least three different days, as required under VA regulations. The Veteran was also treated multiple times in service for chest pain and once for heart palpitations. However, these complaints were diagnosed as anxiety-related and there was no finding of hypertension at the time of treatment. Thus, the Board finds that the Veteran was not treated for or diagnosed with hypertension while in service and the second element of Hickson is not met. As the Veteran has failed to satisfy the second element of Hickson, the Board finds the question of a medical nexus to be irrelevant. Additionally, there is no indication that the Veteran was treated for or diagnosed with hypertension within a year of service so as to support a grant of service connection on a presumptive basis. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2009). As such, the Veteran is not afforded the presumption of service connection for hypertension. See 38 C.F.R. § 3.307 (2009). Accordingly, the Board finds that the claim of entitlement to service connection for hypertension must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). B. Bilateral Hearing Loss The Veteran claims that he has bilateral hearing loss as a result of his active military service. Specifically, he contends that exposure to noise in service has resulted in bilateral hearing loss. He, therefore, believes that service connection is warranted. For the purpose of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2009). In August 2007, a VA examiner diagnosed the Veteran with normal to moderately severe sensorineural hearing loss in his right ear and normal to severe sensorineural hearing loss in his left ear. Additionally, the examiner found auditory thresholds of 40 decibels or greater at 3000 Hz and 4000 Hz for the right ear and at 2000 Hz, 3000 Hz, and 4000 Hz for the left ear. This meets the VA regulatory definition of a hearing loss disability. As such, the first element of Hickson is met. The Veteran's Form DD-214 indicates a military specialty of light weapons infantryman and a Combat Infantryman Badge, indicating combat experience. As such, noise exposure can be conceded and the second element of Hickson is met. Although in-service noise exposure and current disability have been established, as noted above, this is not sufficient to warrant service connection. There still must be competent medical evidence of a nexus between the Veteran's in-service noise exposure and current disability. See Hickson, supra. In August 2007, the Veteran underwent a VA audiological examination. The examiner reviewed the Veteran's claims file and noted the conceded in-service noise exposure. He also noted the Veteran's reported post-service noise exposure, including many years of working in underground coal mines and hunting. The examiner concluded that the Veteran's current bilateral hearing loss is not related to his service because he had essentially normal hearing upon separation and had significant post-service noise exposure. In this case, the only evidence which purports to relate the Veteran's bilateral hearing loss to in-service noise exposure consists of the statements of the Veteran and his representative. However, it is now well established that laypersons, such as the Veteran and his representative, without medical training are not competent to relate those symptoms to a specific etiology. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also 38 C.F.R. § 3.159 (a)(1) (2009) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran can describe what he experiences, he is not able to provide competent evidence as to the etiology of his bilateral hearing loss. His assertions are accorded less weight than the competent medical evidence, the August 2007 VA examiner's opinion, that is against his claim. Competent evidence linking the Veteran's disability to service is lacking in this case. Additionally, there is no indication that the Veteran was treated for or diagnosed with sensorineural hearing loss within a year of service so as to support a grant of service connection on a presumptive basis. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2009). As such, the Veteran is not afforded the presumption of service connection for bilateral hearing loss. See 38 C.F.R. § 3.307 (2009). Accordingly, the Board finds that the claim of entitlement to service connection for bilateral hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009); see also Ortiz, supra. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for bilateral hearing loss is denied. REMAND With regard to his claim of entitlement to service connection for tinnitus, the Veteran underwent a VA audiological examination in August 2007. At that time, the examiner reported that the Veteran had experienced ringing in his ears for approximately 10 years. However, the Veteran contends that this does not accurately reflect the history he gave to the August 2007 examiner. Rather, he contends that he reported to the examiner that he has experienced ringing in his ears since his time in service and that it has worsened in the last 10 years. See Hearing transcript, April 2008. This assertion is consistent with his previous assertions of ringing in his ears since service. See Claim, September 2006. As the August 2007 examiner's opinion does not reflect the record or the Veteran's assertions, it is not adequate to render a decision on entitlement to service connection for tinnitus. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the Court explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's claim of entitlement to service connection for tinnitus must be remanded for a new VA examination. Additionally, as this issue is being remanded, the Board will take the opportunity to obtain any VA treatment records not yet associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Copies of updated treatment records, covering the period from July 23, 2007, to the present, should be obtained and added to the claims folder. 2. The Veteran must be scheduled for a VA examination to determine the nature and etiology of his tinnitus. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. The examiner should also obtain a full history from the Veteran as to the onset of his tinnitus symptoms. This also must be noted in the examination report. The examiner must state whether it is at least as likely as not that the Veteran's tinnitus was caused or aggravated by in- service noise exposure. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. After completing the above actions and any other development that may be indicated by any response received as a consequence of the action taken in the paragraphs above, the claim of entitlement to service connection for tinnitus should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2009). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs